On December 11, 2023, the City of San Francisco released the San Francisco Generative AI Guidelines (“Guidelines”). The Guidelines set forth parameters for City employees, contractors, consultants, volunteers, and vendors who use generative artificial intelligence (AI) tools to perform work on behalf of the City.
Specifically, the Guidelines encourage City employees, contractors, consultants, volunteers, and vendors to use generative AI tools for purposes such as preparing initial drafts of documents, “translating” text into levels of formality or for a ...
Almost a decade ago, in September 2014, California was the first state in the nation to enact legislation prohibiting non-disparagement clauses that aimed to prevent consumers from writing negative reviews of a business. Popularly referred to as the “Yelp Bill,” AB 2365 was codified at California Civil Code Section 1670.8, which prohibits businesses from threatening or otherwise requiring consumers, in a contract or proposed contract for sale or lease of consumer goods, to waive their right to make any statement—positive or negative—regarding the business or ...
As we reported in the first installment of our series on pay transparency, pay equity legislation continues to trend nationwide. While Part I focused on salary range disclosure legislation, in Part II, we highlight mandatory pay data reporting requirements that are being considered in Massachusetts.
What is Mandatory Pay Data Reporting?
Pay data reporting laws require covered employers to submit detailed compensation data reports, often broken down by race and gender, to state-designated agencies. To date, California and Illinois have adopted such laws. Under California law ...
On September 5, 2023, the California legislature passed Senate Bill 403 (“SB-403”), paving the way for a state-wide ban on caste discrimination to be signed into law by Governor Gavin Newsom.
SB-403 would amend the definition of “ancestry” under the California’s Unruh Civil Rights Act, Fair Employment and Housing Act, and certain provisions of the Education Code to include and define “caste.” According to the introductory language to the bill, rather than adding a new category of protected characteristics, the amendments “are declarative of and clarify ...
California businesses, including employers, that have not already complied with their statutory data privacy obligations under the California Consumer Privacy Act (CCPA) as amended by the California Privacy Rights Act (CPRA), including as to employee and job applicant personal information, should be taking all necessary steps to do so. See No More Exceptions: What to Do When the California Privacy Exemptions for Employee, Applicant and B2B Data Expire on January 1, 2023. As background, a covered business is one that “does business” in California, and either has annual gross revenues of $25 million, annually buys sells or shares personal information of 100,00 consumers or households, or derives 50 percent or more of its annual revenues from selling or sharing consumers’ personal information. It also applies, in certain circumstances, to entities that control or are controlled by a covered business or joint ventures. Covered businesses may be exempt from obligations under certain enumerated entity-level or information-level carve-outs.
The first of the year brought with it new pay transparency obligations for employers in several states, including Rhode Island, California, and Washington. Halfway through the year, this type of legislation remains a focus for legislators from coast to coast, including in jurisdictions like Colorado, where similar laws are already on the books. While these proposed laws are all generally rooted in pay equity principles, their substantive differences and sheer volume raise serious questions for employers looking to recruit, hire, and retain talented employees across the country.
The California Office of Administrative Law has approved the California Division of Occupational Health and Safety’s (Cal/OSHA) COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). As a result, on February 3, 2023, Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) expired, and the Non-Emergency Regulations went into effect.
Although extending many of the ETS requirements, as we previously reported, the Non-Emergency Regulations contain some notable changes. A redline comparing the Non-Emergency Regulations to the ETS is available here. Some important changes include:
California is one of a growing list of states requiring employers to make certain pay transparency disclosures to employees and applicants. California employers already had an obligation to provide pay scales to job applicants upon request; however, as we previously reported, under SB 1162, employers must now disclose pay scales to current employees upon request, and employers with 15 or more employees must include pay scales in job postings.
As featured in #WorkforceWednesday: This week, we shed light on the growing issues surrounding electronic employee monitoring, the Equal Employment Opportunity Commission’s (EEOC’s) disavowal of comments by a former General Counsel (GC) regarding abortion travel benefits, and California’s latest marijuana employment protection law.
In the wake of the landmark decision in Dobbs v. Jackson Women's Health Organization, we have been closely monitoring legal developments across the country. In addition to well publicized “trigger laws” that were effectuated as a result of the U.S. Supreme Court’s order, states have taken up a variety of legislative actions in response to the ruling, which placed authority for the regulation of abortion with the states.
The California legislature has presented S.B. 1162 (“the Bill”) to Governor Gavin Newsom. If the Governor signs the Bill into law, California will follow the lead of jurisdictions like Colorado and New York City by requiring many employers to include pay scales in job postings. The Bill would also impose pay equity reporting requirements, not just on large employers obligated to do so under federal law, but on any private employer with 100 or more employees, including those whose “employees” are hired through labor contractors. Those reports will also have to include breakdowns of aggregate data not previously collected.
As featured in #WorkforceWednesday: This week, we look at labor law and pay developments from the National Labor Relations Board (NLRB) and in California.
California’s Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) give consumers substantial rights regarding the disclosure and use of their personal information collected by businesses subject to the law. Significantly, CCPA/CPRA define the term “consumer” to mean any California resident. This broad definition extends not only a business’s individual customers, but also its employees, job-applicants and even its business-to-business (B2B) contacts. We have previously discussed the compliance requirements of these data privacy laws on organizations doing business in California, and the moratoriums for B2B and employee/applicant data that that the Legislature had put in place exempting covered businesses from complying with certain requirements of the laws.[1] Unless extended by the Legislature (which appears unlikely) or preempted by federal privacy legislation (which appears even more unlikely), the moratoriums will sunset on January 1, 2023. Accordingly, covered businesses should begin preparing now to meet their upcoming expanded statutory obligations to protect consumers data privacy.
The United States Supreme Court (“SCOTUS”), in Dobbs v. Jackson Women’s Health Organization, has held that there is no constitutional right to abortion, overruling Roe v. Wade and Casey v. Planned Parenthood.
For the second time this spring, a California statute designed to promote diversity in corporate boardrooms was blocked by a state judge. On May 13, 2022, in Crest v. Padilla I (Los Angeles Superior Court Case No. 19STCV27561) (Crest), Los Angeles Superior Court Judge Maureen Duffy-Lewis ruled that California Corporations Code Section 301.3 (SB 826), which requires publicly listed corporations in California to have women on their boards, violates the Equal Protection Clause of California’s Constitution. California Secretary of State Shirley N. Weber has since announced plans to appeal the decision, stating that “SB 826 was passed not to remove men from the boardroom, but simply to make room for highly qualified women who have been excluded from the corporate board selection process for decades.”
Prompted by the widespread adoption and use of video-conferencing software following the COVID-19 pandemic, many employers have shifted toward video interviews to evaluate potential hires. Even as employers have begun to require in-office attendance, the widespread use of video interviewing has continued, because it is a convenient and efficient way to evaluate applicants. Some of the video interviewing tools used by employers incorporate the use of artificial intelligence (AI) in an effort to maximize the effectiveness of the interview process. Often, employers contract with third-party vendors to provide these AI-powered interviewing tools, as well as other tech-enhanced selection procedures.
A California Superior Court judge has invalidated state legislation that required boards of publicly held corporations headquartered in California to include a minimum number of directors from underrepresented communities. The court’s decision effectively strikes down Assembly Bill No. 979 (“AB 979”), a law enacted with the goal of increasing diversity on boards of directors, paving the way for a parallel outcome to a similar challenge of a statutory mandate for increased gender diversity on boards of directors.
Promotion of “Underrepresented Communities” Struck Down
On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”). Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.
In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”). Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.
On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate. Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.
First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met. Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating). Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.
On December 13, 2021, the California Department of Public Health (“CDPH”) announced new Guidance for the Use of Face Coverings (“CDPH Guidance”), implementing a mandatory mask mandate for individuals (employees and patrons) in all indoor public settings, irrespective of vaccination status, beginning on December 15, 2021 through at least January 15, 2022. The CDPH Guidance requires that masks be worn by all individuals over the age of two, unless exempt for disability-related or medical condition-based reasons, and recommends the use of surgical masks or higher-level respirators.
FAQs issued by the CDPH specify that the CDPH Guidance applies to workplaces, and clarify that local public health regulations remain in effect for localities that have previously adopted face covering measures prior to issuance of the CDPH Guidance that apply regardless of vaccination status. That is, the CDPH Guidance only applies to local health jurisdictions that do not have existing indoor masking requirements. Notably, the San Francisco Department of Public Health (“SFDPH”) has taken the position, in its updated Order and FAQs, that its own masking rules remain in place—including exemptions for “stable cohorts” with 100% vaccination rates, among other criteria. Marin County and Contra Costa County have taken similar positions regarding the applicability of local health order mask exceptions. It remains unclear whether local mask exceptions apply given the CDPH Guidance masking rules.
On September 22, 2021, California Governor Gavin Newsom signed into law a groundbreaking bill that affects warehouse distribution centers (“covered employers”) and their employees.
Effective January 1, 2022, AB 701, requires covered employers to provide nonexempt employees with a written description of each quota that the employee is subject to, including the number of tasks to be performed, or materials to be produced or handled, and any potential adverse employment action that could result from failure to meet the quota. The disclosures must be made at the time of hire, or ...
Counties across California are making a detour on the road to easing COVID-19 restrictions.
Los Angeles County
On July 16, 2021, Los Angeles County issued an Order of the Health Officer (“the Order”) that requires all persons to wear face masks while in all indoor public settings, venues, gatherings, and businesses (i.e., office workplaces, retail, restaurants, theaters, meetings), with limited exceptions. In indoor settings where there is close contact with unvaccinated individuals, the Order recommends that people consider wearing a higher level of protection, such as ...
It has been an active week in California with the release of new statewide face covering guidance, the alignment of Los Angeles County and San Francisco with this guidance, and the withdrawal of the revised Cal/OSHA Prevention Emergency Temporary Standards by the California Division of Occupational Safety and Health Standards Board (the “Board”).
Of most importance, covered employers and workplaces must continue to comply with the more restrictive original Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 2020, not
On May 21, 2021, consistent with Governor Newsom's intention to fully reopen California by June 15, the California Department of Public Health (“CDPH”) released “Beyond the Blueprint for Industry and Business Sectors” (“Beyond the Blueprint”), outlining the state’s latest reopening guidelines and restrictions. Importantly, as reflected in the CDPH’s announcement, most employers (as discussed below) must still follow the more restrictive Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) (“ETS Standards”) (which we wrote about ...
Our colleagues Denise Dadika and Vidaur Durazo of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: "Changing Floors: Minimum Wage Increases for Health Leaders to Consider".
The following is an excerpt:
2021 is set to be a landmark year for the number of jurisdictions raising wage floors across the country. According to a National Employment Law Project report, as of January 1, 2021, 20 states and 32 municipalities raised their minimum wage. By the end of 2021, the report tracks that as many as 24 states and 50 ...
In our previous blog, we featured the California Privacy Rights Act’s Enhanced Cybersecurity Safeguards.[1] We now highlight significant privacy safeguards under the California Privacy Rights Act (“CPRA”) that will require advance planning in preparation for its January 1, 2023 effective date.[2] These new requirements will impact the collection and use of personal information across each organization. In particular, businesses, at a minimum, will need to assess and plan for:
- the effective implementation of data minimization policies, practices, and ...
The California Privacy Rights Act (“CPRA”) leaps forward on cybersecurity by amending the California Consumer Privacy Act (“CCPA”) to impose enhanced protections. The CPRA enhancements apply to “for profit” companies and other organizations: (a) with more than $25 million in gross revenues in the preceding calendar year, or (b) that annually buy, sell or share the personal information of 100,000 or more consumers or households, or (c) that derive at least 50 percent of their annual revenue from selling or sharing consumer personal information ...
The first COVID-19 vaccines have started being shipped across the U.S. with the expectation that millions of doses will be administered over the next few weeks, with many times more over the coming months. This is unequivocally good news and reason for optimism. Meanwhile, however, the pandemic continues to spread nationwide and the numbers are rising rapidly.
The unabated second wave spike of COVID-19 infections arriving with the holiday season and our traditional time for gatherings has led governors, mayors and health departments across the country to tighten restrictions on ...
In the last several years, a growing number of states and municipalities have passed “ban the box” laws that to varying degrees prohibit employers from inquiring into a job applicant’s criminal background until later in the hiring process and/or restrict employers from using certain criminal conviction information in connection with their hiring decisions. Recently, St. Louis, Missouri joined this group, while California and Hawaii expanded their existing prohibitions on criminal history inquiries.
St. Louis, Missouri
Under the St. Louis ban the box Ordinance (the ...
On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1383 (“SB 1383“), expanding job-protected family leave for employees of companies with five or more employees. Previously, only employees of companies with 20 or more employees were entitled to these protections. According to the Governor’s office, this law, which becomes effective January 1, 2021, will expand job-protected family leave to nearly six million additional Californians.
Existing Law
The California Family Rights Act (“CFRA”) currently makes it any an unlawful employment ...
On September 9, 2020, California Governor Gavin Newsom signed Assembly Bill 1867 (“AB 1867”), mandating supplemental paid sick leave for employees of companies with 500 or more employees. AB 1867 fills gaps left open by the federal Families First Coronavirus Response Act (“FFCRA”) (previously discussed here) and the Executive Order signed by Newson on April 22, 2020, which only applied to essential food workers (previously discussed here).
The sick leave portions of the law are effective immediately and covered employers must make the leave available no later than ...
Seeking to prevent San Francisco’s return-to-work program from reigniting a surge of COVID-19 cases, the city’s Board of Supervisors (“Board”) has passed the “Healthy Buildings Ordinance” (“Ordinance”). This temporary emergency measure, which Mayor London Breed signed on July 17, 2020, and which is effective immediately, (i) establishes cleaning and disease prevention standards in tourist hotels and large commercial office buildings; (ii) mandates employee training on these standards and various protections employers must provide for workers as they ...
In recent years, wage discrimination has been a hot topic and with it, the question of whether employers may rely on a worker’s salary history to justify a pay disparity between male and female employees. In a 2018 case involving the federal Equal Pay Act (“EPA”), Rizo v. Yovino, (about which we wrote here), the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) ruled that employers may not rely on prior salary to excuse unequal pay. On petition, the Supreme Court vacated the decision and remanded the case on a technical ground (i.e., because the judge who ...
On April 7, 2020, the California Court of Appeals (the “Court”) upheld summary judgment for two professional employer organizations (referred to in the decision as a “staffing agencies”) accused of harassment and discrimination by one of its “leased” employees. In Ducksworth v. Tri-Modal Distribution Services, the Court found that joint employers—and more specifically staffing agencies—cannot be held liable for harassment and discrimination claims absent a showing that they participated in or were involved in the alleged wrongful conduct.
Plaintiffs ...
On April 16, 2020, California Governor Gavin Newsom signed Executive Order N-51-20 (“Executive Order”), mandating supplemental paid sick leave for food sector workers at companies (i.e., “Hiring Entities”) with 500 or more employees. The Executive Order should help fill a gap for essential food sector workers left open under the federal Families First Coronavirus Relief Act ("FFCRA") (previously discussed here).
The Executive Order is effective immediately and remains effective during any statewide stay-at-home order. Like the recently enacted Supplemental paid ...
On September 6, 2019, the U.S. District Court for the Northern District of California preliminarily approved a settlement in Harvey v. Morgan Stanley Smith Barney LLC. The significance of the result is two-fold. First, substantively, it is a reminder to financial services firms of potential liability under California labor law when advisors are required to pay for business expenses. Second, procedurally, the court’s approval of the settlement is edifying on the subject of parallel class actions.
In the Harvey case, plaintiffs challenged Morgan Stanley Smith Barney’s ...
New York is the latest state to adopt a law that requires businesses that collect private information on its residents to implement reasonable cybersecurity safeguards to protect that information. New York now joins California, Massachusetts and Colorado in setting these standards. New York’s law mandates the implementation of a data security program, including measures such as risk assessments, workforce training and incident response planning and testing. Businesses should immediately begin the process to comply with the Act’s requirements effective March 21, 2020 ...
This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.
This episode includes:
- State Legislation Heats Up
- NLRB Overturns Another Long-Standing Precedent
- SCOTUS October Term 2018 Wraps Up
- Tip of the Week: How inclusion and trust can increase innovation in the workplace
See below to watch the full episode - click here for story details, the video, and the extended audio podcast.
Stay tuned: Sign-up for email notifications and subscribe to the ...
Our colleagues Frances L. Kenajian and Nathaniel M. Glasser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the retail industry: "Summer Networking Events: Workplace Harassment Can Happen Outside the Workplace."
Following is an excerpt:
Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type of prohibited gender discrimination. New York City and New York State now require employers to provide their employees with anti-sexual ...
With warmer weather quickly approaching, many employers are beginning to schedule happy hours, parties, softball games, and other off-site events that employees (and interns) look forward to attending. However, at offsite work events, employees might forget—or might not realize in the first place—that they are still in a workplace setting. This could result in unwelcome behavior, such as sexual harassment, which could leave an employer open to liability.
Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type ...
Hospitality remains at the forefront of demanding industries where employers must be ever vigilant in their efforts to ensure full compliance with federal, state, and local employment laws and regulations. We highlight below five new or upcoming areas on which employers should focus.
Hospitality Employers May Soon Face a Compliance Challenge: The New Proposed DOL Salary Threshold for “White Collar” Exemptions
The Department of Labor (“DOL”) has proposed a new rule that would increase the salary threshold for most “white collar” ...
[Update: The measure was signed into law by Governor Mills on April 12, 2019.]
On April 2, 2019, the Maine Legislature celebrated Equal Pay Day by passing two significant amendments (“Amendments”) to the Maine Equal Pay Act. If, as expected, Governor Janet Mills signs the measure, certain salary history inquiries and employer policies prohibiting employee wage discussions will be deemed “evidence of discrimination.” While the Amendments do not directly “prohibit” such inquiries and policies, in effect, they operate as a ban on such conduct.
Specifically, the ...
Our colleague Tzvia Feiertag at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the financial services industry: “NJ Employers and Out-of-State Employers with NJ Residents Prepare: State Updates Website on Employer Reporting for New Jersey Health Insurance Mandate.”
Following is an excerpt:
As employers are wrapping up their reporting under the Affordable Care Act (“ACA”) for the 2018 tax year (filings of Forms 1094-B/C and 1095-C/B with the IRS are due by April 1, 2019, if filing electronically), they ...
In the New Year, two states – New Jersey and Illinois – have proposed legislation requiring restaurants to adopt a sexual harassment training policy and provide anti-sexual harassment training to employees. While it remains to be seen whether these bills will become law, attempts to target and reform working conditions in the hospitality industry are nonetheless noteworthy, particularly given that unlike New York and California, neither New Jersey nor Illinois have enacted broad legislation requiring private sector employers, regardless of occupation, to provide sexual ...
Washington State is considering sweeping legislation (SB 5376) to govern the security and privacy of personal data similar to the requirements of the European Union’s General Data Protection Regulation (“GDPR”). Under the proposed legislation, Washington residents will gain comprehensive rights in their personal data. Residents will have the right, subject to certain exceptions, to request that data errors be corrected, to withdraw consent to continued processing and to deletion of their data. Residents may require an organization to confirm whether it is processing ...
Our colleague Kevin Sullivan at Epstein Becker Green has a post on the Wage and Hour Defense Blog that will be of interest to our readers in the retail industry: “California Court of Appeal Concludes That Certain Types of On-Call Scheduling Triggers Requirement to Pay Wages."
On February 4, 2019, a divided panel of the California Court of Appeal issued their majority and dissenting opinion in Ward v. Tilly’s, Inc. It appears to be a precedent-setting decision in California, holding that an employee scheduled for an on-call shift may be entitled to certain wages for that shift ...
Our colleagues at Epstein Becker Green have a resent post on the Wage and Hour Defense Blog that will be of interest to our readers in the retail industry: “California Supreme Court’s Clarification of De Minimis Doctrine Leaves Many Questions Unanswered – and Does Little to Ease Plaintiffs’ Path to Class Certification.”
On July 26, 2018, the California Supreme Court issued its long-awaited opinion in Troester v. Starbucks Corporation, ostensibly clarifying the application of the widely adopted de minimis doctrine to ...
On July 9, 2018, Governor Edmund Brown, Jr. signed into law Assembly Bill 2770 (“AB 2770”) to protect victims of sexual harassment and employers from defamation claims brought by alleged harassers. AB 2770 was sponsored by the California Chamber of Commerce and passed by the California Legislature to address the chilling effect that the threat of defamation suits can have on harassment victims and employers: deterring victims and witnesses from coming forward; deterring employers from telling prospective employers about a genuine harasser; and allowing repeat sexual ...
The federal Equal Pay Act (“EPA”) mandates equal pay for equal work regardless of sex. Employers that pay men and women different wages for the same work are strictly liable for violations of the EPA unless they can show that one or more of four exceptions apply to explain the wage disparity. The four statutory exceptions are seniority, merit, the quantity or quality of the employee’s work, or “any other factor other than sex.” The Ninth Circuit recently took up the question of the meaning of the fourth, catchall exception - “any factor other than sex” – in order to ...
Our colleague at Epstein Becker Green has a post on the Wage and Hour Defense blog that will be of interest to our readers in the retail industry: “Federal Court Concludes That 7-Eleven Franchisees Are Not Employees of 7-Eleven.”
Following is an excerpt:
In November 2017, four convenience store franchisees brought suit in federal court against 7-Eleven, Inc., alleging that they and all other franchisees were employees of 7-Eleven. The case was filed in the United States District Court for the Central District of California, entitled Haitayan, et al. v ...
Featured on Employment Law This Week: A California federal judge has ruled that a former GrubHub delivery driver was an independent contractor, not an employee.
The judge found that the company did not have the required control over its drivers for the plaintiff to establish that he is an employee. This decision comes as companies like Uber and Lyft are also facing lawsuits that accuse them of misclassifying employees as independent contractors. Carlos Becerra, from Epstein Becker Green, has more.
Watch the segment below and read our recent post.
Our colleagues , at Epstein Becker Green, have a post on the Wage and Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law.”
Following is an excerpt:
Recently, a number of proposed class and collective action lawsuits have been filed on behalf of so-called “gig economy” workers, alleging that such workers have been misclassified as independent contractors ...
Steven R. Blackburn, Member of the Firm in the Employment, Labor & Workforce Management practice will co-present a Practising Law Institute in-person event and webcast on January 25, 2018 at 10:00 a.m. PST titled “Tech Sector Employment Law Hot Topics for the California Lawyer.”
This event will address current California employment law issues, with the added focus of how the latest, state-specific legal developments impact the tech sector, in particular.
Steven R. Blackburn’s program is titled, “Sexual Harassment in the Tech Sector - Employer Duties, Investigations ...
For the second time in as many years, California Governor Jerry Brown has vetoed “wage shaming” legislation that would have required employers with 500 or more employees to report gender-related pay gap statistics to the California Secretary of State on an annual basis beginning in 2019 for publication on a public website. Assembly Bill 1209 (“AB 1209”), which we discussed at length in last month’s Act Now advisory, passed the Legislature despite widespread criticism from employers and commerce groups. This criticism included concerns that publication of statistical ...
On September 13, 2017, California legislators passed California Bill AB 450, also known as the Immigrant Worker Protection Act (“the Act”). The Act is one of three immigration bills currently awaiting Governor Jerry Brown’s approval or veto.[1]
The Act imposes specific restrictions on employers in instances where U.S. Immigration and Customs Enforcement (“ICE”) agents seek access to their workplaces for immigration enforcement. Specifically, the Act prohibits employers from (1) voluntarily consenting to allow an ICE agent to enter nonpublic areas of the ...
In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds. In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided ...
California’s Fair Employment & Housing Council has finalized and adopted new regulations to establish criteria for the use and consideration of criminal history information in employment decisions where such use may constitute a violation of California’s Fair Employment and Housing Act. The new regulations take effect July 1, 2017, and are available here and on the Council’s website. The regulations are intended to clarify, outline and maintain consistency between the laws governing the consideration of criminal history information in employment decisions.
The ...
In the new issue of Take 5, our colleagues examine important and evolving issues confronting owners, operators, and employers in the hospitality industry:
Equal pay for equal work has been required for many years, but, as of late, this rather static requirement has become the focal point of regulators, state and local governments, and activists. In order to achieve equality in compensation, the efforts are becoming increasingly creative with new pushes for transparency, privacy, and/or disclosures. Financial services firms are often the target and should not only be aware of these innovative measures and requirements but also consider what proactive actions to put in place.
Eliminating Pay Secrecy
The National Labor Relations ...
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed ordinances no. 184652 and 184653, collectively referred to as the “Fair Chance Initiative.” These ordinances prohibit employers and City contractors (collectively “Employers”), respectively, from inquiring about job seekers’ criminal convictions until after a conditional offer of employment has been made. Both ordinances will go into effect on January 22, 2017 and will impact all employers in the City of Los Angeles and for every position which requires an employee to work at least an average of two hours per ...
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed ordinances no. 184652 and 184653, collectively referred to as the “Fair Chance Initiative.” These ordinances prohibit employers and City contractors (collectively “Employers”), respectively, from inquiring about job seekers’ criminal convictions until after a conditional offer of employment has been made. Both ordinances will go into effect on January 22, 2017 and will impact all employers in the City of Los Angeles and for every position which requires an employee to work at least an average of two hours per ...
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed ordinances no. 184652 and 184653, collectively referred to as the “Fair Chance Initiative.” These ordinances prohibit employers and City contractors (collectively “Employers”), respectively, from inquiring about job seekers’ criminal convictions until after a conditional offer of employment has been made. Both ordinances will go into effect on January 22, 2017 and will impact all employers in the City of Los Angeles and for every position which requires an employee to work at least an average of two hours per ...
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed ordinances no. 184652 and 184653, collectively referred to as the “Fair Chance Initiative.” These ordinances prohibit employers and City contractors (collectively “Employers”), respectively, from inquiring about job seekers’ criminal convictions until after a conditional offer of employment has been made. Both ordinances will go into effect on January 22, 2017 and will impact all employers in the City of Los Angeles and for every position which requires an employee to work at least an average of two hours per ...
Our colleagues Steven R. Blackburn and Elizabeth J. Boca, attorneys at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the hospitality industry: “San Francisco Paid Parental Leave.”
Following is an excerpt:
Under the proposed San Francisco ordinance, for up to six weeks employers must bridge the gap between the amount the employee receives in PFL and one-hundred percent of the employee’s gross weekly wages (referred to as “Supplemental Compensation”) for parental bonding purposes. In ...
Following on the tails of recent updates in New York and California’s equal pay laws, New Jersey, Massachusetts, and California all have bills pending in their state legislatures that would seek to eliminate pay differentials on the basis of sex and other protected categories.
The NJ Amendment
NJ employers may be curious why this amendment is necessary, as the state’s Equal Pay Law already prohibits discrimination in the rate or method of payment of wages to an employee because of his or her sex. The NJ Amendment, which has passed in the Senate and must now move through the House ...
Yesterday, the California Court of Appeal ruled against The Wet Seal Retail, Inc. in its appeal of the denial of its motion to compel arbitration. The trial court determined that the arbitration agreement at issue impermissibly waived representative actions under the Private Attorney General Act (PAGA). Because the agreement also stated that it was not to be enforced if the waiver provision was found unconscionable, the court denied the motion to compel arbitration. On appeal, the decision was affirmed. This case highlights the current divide between state and ...
By Meg Thering
On May 27, 2014, employees of high-tech firms in the Silicon Valley filed a motion in the Northern District of California seeking approval of a settlement agreement releasing antitrust claims they had brought against Adobe Systems, Incorporated, Apple Inc., Google, Inc., and Intel Corporation. In the complaint, the plaintiffs alleged that the defendants had agreed to refrain from hiring each other’s employees in an effort to drive down compensation levels in the Silicon Valley. Specifically, the complaint alleged that Defendants entered into “illegal ...
By Michael Kun
Several years ago, employees in California began filing class action lawsuits against their employers alleging violations of the “suitable seating” provision buried in the state’s Wage Orders. The unique provision requires some employers to provide “suitable seating” to some employees when the “nature of their work” would “reasonably permit it.”
The use of multiple sets of quotation marks in the previous sentence should give readers a good idea just how little guidance employers have about the obscure law.
The California Supreme Court is now ...
By Jennifer Nutter and Amy Messigian
The beginning of a new year means new laws that will take effect in California. Some of the laws that are of particular interest to employers in the hospitality industry are below:
- Minimum Wage Increases: The minimum wage in California is increasing to $9/hour effective July 1, 2014. Employers should confirm whether currently exempt employees will continue to meet any minimum compensation requirements once the minimum wage increases (e.g., twice the minimum wage will become $720 a week or $37,440 a year). Additionally, San Jose and San Francisco ...
By Michael Kun
We have written previously in this blog about California’s obscure “suitable seating” law, which requires that some employers provide “suitable seating” to some employees.
In short, the plaintiffs’ bar recently discovered a provision buried in California’s Wage Orders requiring employers to provide “suitable seating” to employees when the nature of their jobs would reasonably permit it. The provision was not designed to cover employees in the hospitality industry who often stand to show that they are ready to assist customers. Instead, it was ...
In rolling out arbitration policies, retail employers should heed the recent California Court of Appeal decision Gorlach v. The Sports Club Co. That case gives employers reason to be cautious when asking employees to sign agreements requiring them to arbitrate any disputes arising out of their employment. In that case, the trial court found the former Director of Human Resources, who was responsible for obtaining employees’ signatures on a mutual agreement to arbitrate claims, intentionally misled the company into believing that had signed the agreement ...
By Michael Kun
This morning, the California Supreme Court has just issued its long-awaited decision in the Brinker case regarding meal and rest period requirements. It is largely, but not entirely, a victory for employers. A copy of the decision is here.
A few highlights of the decision:
On rest periods, the Court confirmed the certification of a rest period class because Brinker’s written policy arguably did not comply with the law as to the second rest period in a day. In so doing, it clarified when employees are entitled to rest periods:
- Employees are entitled to 10 minutes’ rest ...
By Michael Kun
Last week, the U.S. Department of Labor’s Wage and Hour Division and the California Secretary of Labor announced that they were teaming up to crack down on employers who classify workers as independent contractors.
The announcement that the two groups would work together on such an initiative should not come as much of a surprise to employers. Shortly after Hilda Solis took office as the U.S. Secretary of Labor, the Wage and Hour Division announced that it would be focusing on this issue. And California has enacted a new statute that provides additional penalties in ...
by Marisa S. Ratinoff, Susan Gross Sholinsky, Eric A. Cook, and Jennifer A. Goldman
California’s Wage Theft Prevention Act of 2011 (“CAWTPA”) went into effect on January 1, 2012. The CAWTPA requires most private-sector employers to provide notice to non-exempt employees of certain wage payment information, among other things. As we previously reported (see Act Now Advisory “New California Laws Increase Penalties for Employee Misclassification and Wage Theft”), the CAWTPA requires the Labor Commissioner (“Commissioner”) to create a template for employers to ...
By Dena L. Narbaitz and Marisa S. Ratinoff
While everyone awaits the California Supreme Court's ruling in Brinker Restaurant Corp. v. Superior Court (Hohnbaum) – which is expected sometime in early 2012 and will determine the scope of an employer's meal and rest period obligations – employers must not lose sight of other important developments in California employment law. Below are brief summaries of some of the legislative enactments in California that will affect employers. Unless otherwise noted, these laws will take effect on January 1, 2012.
by Michael S. Kun, Eric A. Cook, and Jennifer A. Goldman
California Governor Jerry Brown has signed two employment-related bills into law, raising the stakes for employers doing business in California. The two laws, which increase the penalties for employers that wrongly classify employees as independent contractors or engage in "wage theft," both go into effect on January 1, 2012.
Misclassification of Workers as Independent Contractors
The first of the new laws, SB 459, directly impacts employers that classify workers as independent contractors. Referred to by critics as the ...
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